Africa’s distrust with International Criminal Court -Part 2

As events spiraled out of control, the government of the Central African Republic, in December 2004, requested that the Prosecutor open an investigation into the 2002- 2003 armed conflict within its borders. As a consequence of its investigations, an arrest warrant for Jean-Pierre Bemba Commander-in-chief of MLC was issued in May 2008 based on counts of crimes against humanity (murder and rape), and war crimes (murder, rape and pillaging). Because Bemba did not himself commit these crimes, the charges were founded on the doctrine of command responsibility. In international criminal law, the principle of superior or command responsibility addresses the criminal responsibility of a superior by virtue of his or her knowledge of the acts and omissions of subordinates and for failure to prevent or punish the criminal acts of his subordinates in the preparation and execution of the crimes charged. The trial of Jean-Pierre is ongoing.

Mali

Like many African countries, Mali has since early 2012 been consumed by severe internal armed conflict. Overwhelmed by the situation, the government of Mali in July 2012, invited the prosecutor of the ICC to open an investigation into the war crimes perpetrated during the conflict. The result of the investigation opened into the situation in January 2013 pursuant to that request is being awaited.

Sudan

In response to a rebel uprising in 2003, which demanded proportional political representation and equitable access to the country’s significant economic resources, the government of Sudan launched a violent campaign against the people of Darfur. Supported by the Sudanese air force, government armed Janjaweed militias carried out violent attacks in villages throughout the region. The villages of Darfur, predominantly inhabited by native African tribes, were bombed and burnt to the ground, their inhabitants raped and murdered. Survivors were forcibly displaced to makeshift camps within Darfur, neighbouring Chad and elsewhere. Darfur has been labelled widely and consistently as the site of the world’s worst humanitarian disaster since it was described as such by the United Nations in 2004. Various reports estimate that since the outbreak of violence in 2003 between two and 400,0000 people have died as a result of fighting and conflict-induced malnutrition and disease. Three million people have been displaced and four million remain entirely dependent on limited humanitarian assistance.

The ICC’s investigation into the situation in Darfur, Sudan was officially opened by the ICC prosecutor on June 6, 2005 after being referred to the Court by the United Nations Security Council in March 2005 pursuant to Resolution 1593. None of the arrest warrants, including that issued against Sudanese President Omar Hassan Ahmad al-Bashir, have been executed and the Sudanese government has consistently refused to cooperate with the Court and the international community.

The Sudanese President is the first sitting head of state to be indicted by the ICC and there has been much discussion about immunity and the validity of the charges against him. Also, the debate about whether African countries that are States Parties to the Rome Statute should leave the ICC is centred around the warrant of arrest issued against him for the crimes he allegedly committed in Sudan.

Libya

The formal investigation into the situation in Libya was opened by the ICC Prosecutor on March 3, 2011, following a preliminary examination of available information. The prosecutor’s announcement came after the United Nations Security Council (UNSC) adopted Resolution 1970 (2011) on February 26, 2011, which referred the situation in Libya, a state not party to the Rome Statute, to the ICC. It was the second time that a situation was referred to the Court by the UNSC under its Chapter VII authority and the first time such a resolution was passed unanimously. The ICC Prosecutor accordingly issued arrest warrants in June 2011 for Muammar Gaddafi, his son Saif Al-Islam and Abdullah Al-Senussi, former head of military intelligence on charges of crimes against humanity, of murder and persecution. The case against Muammar Gadaffi was terminated following his death in November 2011. While the ICC deferred to Libya’s jurisdiction in respect of the other two suspects.

Kenya

In December 2007, Kenya held its general elections after a very testy campaign awash with hate speeches. The Presidential contest was a closely run race between the incumbent Mwai Kibaki of the Party of National Unity (PNU) and Raila Odinga, the candidate for the Orange Democratic Movement (ODM). After the announcement of the delayed results which created palpable tensions across the country, President Mwai Kibaki was declared the winner and was sworn in as President among allegations of electoral fraud by the opposition.

This and other series of events led to widespread protests across the country which took an ethnic dimension. The extensive violence left over 1,300 dead and caused the displacement of 300,000 people. After more than a year of inaction and missed deadlines by Kenya’s authorities to prosecute the known perpetrators of the post-election violence, the ICC Prosecutor, Luis Moreno-Ocampo following an analysis of the report of the Waki Commission and other materials, decided that there was a reasonable basis to proceed with an investigation. Accordingly, in November 2009, Moreno-Ocampo announced that he would request ICC judges to allow him permission to proceed with an investigation in Kenya’s election violence. This marked the first time that an ICC prosecutor would initiate proceedings proprio motu. Several counts of crimes against humanity including murder, persecution, rape and other inhumane acts were laid against Uhuru Kenyatta (now President of Kenya) and William Ruto (Vice President) among others.

Cote d’Ivoire

The ICC Prosecutor initiated proceedings proprio motu with respect to the situation in Cote D’Ivoire following the approval of the Pre-trial Chamber II in October 2011, making it only the second time that the Prosecutor invoked his right to initiate a proprio motu investigation without a prior referral from the UN Security Council or a State Party to the Rome Statute. But Cote d’Ivoire having recognised the jurisdiction of the court in December 2010, after the outbreak of the civil war, it may be argued that it was in the nature of a state referral rather than a direct exercise of prosecutorial discretion.

From the foregoing account of how the ICC came to be involved in the eight African states where it is currently active, it is clear that investigations into African situations were opened at the request or with the support of African states.

• To be continued tomorrow.• Jegede, a former Prosecutor at the International Criminal Tribunal for Rwanda, currently practices law in Lagos.